A Blog of Members of the Administrative Law and Regulatory Practice Section of the American Bar Association

Thursday, May 2, 2013

D.C. Circuit Allows CREW v. FEC to Move Forward

by Lou Kolodner

On April 2, 2013, the U.S. Court of
Appeals for the D.C. Circuit reversed a District Court ruling in favor of the Federal Election Commission ("FEC").Citizens for Resp. and Ethics in Washington v. Fed. Election
Comm., 711 F.3d
180 (D.C. Cir. 2013). The District Court granted the FEC's motion for summary judgment of a Citizens for Responsibility and Ethics in Washington ("CREW") complaint challenging the FEC's delay in responding to a Freedom of Information Act ("FOIA"). The District Court held that CREW did not exhaust administrative appeal remedies. The Circuit Court reversed the decision, allowing the case to move forward. The case hinged on “what constitutes [an agency] ‘determination' so as to trigger the exhaustion requirement.” This was a case of first impression in the D.C.
Circuit.

CREW is a nonprofit organization dedicated to promoting
ethics and accountability in government and public life. CREW
promotes transparency through monitoring and exposing activities of public officials
and federal agencies. In this case, CREW submitted a FOIA request to the FEC in March of 2011. The
FEC acknowledged receipt of the request the next day. However, after the agency failed to produce any documents in two months,
CREW filed suit in D.C. District Court. The District Court granted the FEC's motion for summary judgment asserting that CREW had not exhausted administrative remedies.

The general rule
governing this issue is that a party making a FOIA request must exhaust administrative
remedies before filing suit in District Court. However, if an agency does not
make and communicate its determination whether to comply with a request within
certain statutory timelines, the party making the FOIA request has exhausted administrative remedies pursuant to 5 U.S.C. §
552(a)(6)(C)(i).

CREW argued that in
order to make a determination within the meaning of the statute, an agency must
at least inform the requester of the scope of the documents it will produce and
the exemptions it will claim with respect to any withheld documents. Thus, CREW
expected notice regarding the scope of the documents the FEC would produce in response to CREW's request. The FEC countered that an
agency only needs to express a future intention to produce non-exempt documents
and claim exemptions.

The D.C. Circuit agreed
with CREW’s interpretation and application of the statute for four reasons. First,
FOIA requires agency notification immediately upon making
a determination on FOIA requests. Second, the
agency must also immediately notify the requester of his or her right to
appeal. In the instant case, the FEC failed to do so within the statutory
timelines. Third, while FOIA provides for exceptional circumstances
if an agency needs more time to make its determination, the FEC did not meet this statutory
requirement. Fourth, the court agreed with CREW that FEC’s interpretation of
the statute would negate the need for the exceptional circumstances provision.

The court held that in order to make a
determination to trigger the administrative exhaustion requirement, the agency
must at least: 1) gather and review the documents; 2) determine and communicate
the scope of the documents it intends to produce and withhold, and the reasons
for withholding any documents; and 3) inform the requester that it can appeal
whatever portion of the ‘determination’ is adverse.

Even though the court sympathized with the
difficulty that FOIA requests pose of executive and independent agencies, the
agency must adhere to the 20-working day period absent unusual circumstances. The
take home message of this case is that the statute does not allow
agencies to keep FOIA requests bottled up for months for no reason.